The Constitutional Conundrum in Madhya Pradesh over expansion of New Cabinet

Does Shivraj Singh Chouhan's move to expand his new cabinet violate constitutional provisions? The author, a final year student of law at NUSRL Ranchi, lays down the objectives and motivations behind the insertion of Article 164(1A) in a constitutional democracy.

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ON July 22, the three judge bench of the Supreme Court, headed by Chief Justice S.A. Bobde, issued a notice to the Chief Minister of Madhya Pradesh Shivraj Singh Chouhan in a plea, by former assembly speaker N P Prajapati, challenging the appointment of 28 ministers in Madhya Pradesh. 

This whole episode started with the induction of new ministers into the Shivraj cabinet. A new controversy came into picture regarding the appointment of 28 new ministers which is in contravention to constitutional norms. 

Taking a dig over the issue, Senior advocate and Rajya Sabha member Vivek Tankha tweeted, 

"Shivrajji has violated the law again. First, he ran the government without a cabinet, when the matter was complained to the President of India, he inducted only five ministers, which was less than the minimum requirement of 12 ministers. He again violated the law by inducting on Thursday more ministers than 15% of the present 206 strength of the state legislature. Congress will move the court against the illegal council of ministers." 

This was the second cabinet expansion since Shivraj Singh Chouhan took over. The petition is filed before the Hon'ble Supreme Court for violating the constitutional norms by exceeding the maximum limit of the Council of Ministers as per Article 164 (1A) of the Constitution of India. 

The current strength of the Council of Ministers in Madhya Pradesh is 34 including the Chief Minister. It is notable that the Madhya Pradesh State Assembly comprises a total of 230 seats. As per the constitutional norm prescribed under Article 164 (1A), the maximum strength of ministers should not exceed 35. However, due to the political crisis in MP, dating back to March 20, the total number of strength of the state legislative assembly has been reduced to 206. As per the new set-up, the maximum number of ministers should not exceed the limit of 31.

What does the law say over this constitutional conundrum?

Article 164 (1A) of the Constitution states that: 

The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen percent. of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve.

The bare reading of this article clearly defines that the maximum number of ministers, including the Chief Minister should not go beyond 15% of the effective strength of the state legislative assembly. 

Following the National Commission for Review of the Working of the Constitution (NCRWC) recommendation headed by former Chief Justice of India, M.N. Venkatachaliah, the Constitution (91st Amendment) Act 2003 amended the Tenth Schedule of the Constitution and inserted Article 75 (1A) and Article 164 (1A) that put a limit on the maximum strength of the council of ministers in the Central government and State Governments respectively.   

The objective behind the insertion of Article 164 (1A)

The National Commission to Review the Working of the Constitution (NCRWC), in its report dated 30.3.2002 under the chairmanship of former CJI Justice M. N. Venkatachaliah, observed that abnormally large Councils of Ministers were being constituted by various Governments at Centre and States. It noted that this practice had to be prohibited by law and a ceiling must be fixed at a maximum of 10% of the total strength of the popular House of the Legislature.  Further, keeping the NCRWC's  recommendation into mind it was stated that in the draft bill of the Constitution (Ninety-First Amendment) Act, 2003 that: 

"In the light of the above, it is proposed to amend the Constitution by omitting paragraph 3 of the Tenth Schedule to the Constitution of India and to provide that the size of the Council of Ministers should not be more than 10% of the strength of House or Houses concerned whether Unicameral or Bicameral. However, in case of smaller States like Sikkim, Mizoram and Goa having 32, 40 and 40 Members in the Legislative Assemblies respectively, a minimum strength of seven Ministers is proposed."

A careful reading of the Statement of Objects and Reasons to Ninety-First Amendment of the Constitution makes it abundantly clear that the insertion of Clause (1-A) in, Article 164 is aimed at stopping the practice of having abnormally large Council of Ministers, in the State assemblies. Though in this regard, the recommendation of the NCRWC was to fix the maximum number at 10% of the total strength of the legislative assembly, the Parliament has fixed the maximum number at 15% of the total strength, barring some smaller States. 

Interpretation of Article 164 (1A)

Applying the basic rules of interpretation, it becomes crystal clear that Clause (1-A) of Article 164 merely aims at fixing the total number of Ministers, including Chief Minister, in the Council of Ministers and this number cannot exceed 15% of the total number of members of the House of the People.

In the case of Harendra Pratap Singh vs. Shri Nitish Kumar The Chief Minister & Ors,  the Patna High Court postulated that Clause (1-A) puts a cap on the total number of Ministers. And the State cannot have either a Minister or Chief Minister in its Council of Ministers if the number exceeds 15% of its total strength. Further, in 2009, the Bombay High Court in Adv. Aires Rodrigues vs The State of Goa and Ors, set aside the appointment of two Parliamentary Secretaries (Cabinet Minister rank) in the state government for violation of Article 164 (1A).

Looking into the intricacies and nuances of the constitutional norms, a contention can be drawn that the recent expansion of Shivraj Singh Chauhan's cabinet by the induction of new ministers is in violation of the law. 

In the petition filed before the Apex Court, the petitioner sought a direction to the Chief Minister to bring down the number of Council of Ministers in conformity with 15 percent of existing members of the House. Along with that, a contention is also being made challenging the appointment of newly inducted ministers. 

This new cabinet expansion has not only given the Congress party a whole new political issue to attack the BJP but has also led to a tug of war from the vantage point of constitutional conundrum.

(The author is a final year law undergraduate at National University of Study and Research in Law, Ranchi. Views expressed are personal.)